EEA Unmarried partner application with expiring tier 4 = overstayed?

[apanskov]

Hello,

I am aware this question has been raised multiple times on this forum, and it is clear that a tier 4 visa converting into an EEA EFM (unmarried partner) residence card is not covered under section 3c. However I am still puzzled whether my unmarried partner (non-EU. "the applicant") can remain in the UK when her tier 4 visa expires end of October 2020?

According to the HO here she will be classed as an overstayer:
https://www.whatdotheyknow.com/request/ ... ts_extende

According to the HO here she is good whilst we are waiting for a decision:
https://www.whatdotheyknow.com/request/ ... eea_efm_wh

By the looks of it, even the HO does not have a clear position.

[kamoe]

I think the key of the inconsistency between the two answers is in the sentence below, from the answer given in the first link:

Without listening to the calls I cannot confirm what questions were asked and what was the reply you received .

This is because how a question is asked makes all the difference. In the first link the condition of unmarried partner is mentioned; in the second, it is not.

That's important, because unmarried partners are in the tricky situation of not actually being considered family members until the EEA card is issued. As such, they have no claim of rights before that happens, contrary to married partners, and other family members.

If you see the rationale of the second answer:

An application made under the (European Economic Area) Regulations 2006 (“the regulations”) seeks confirmation that rights under the regulations
are being exercised and, as such, does not require and applicant to hold leave to enter or remain.

It seems to me that the answer in the second link is oblivious to the fact that the person asking might be an unmarried partner, and is just giving the general advice that would apply to other family members that have an automatic right of residence before EEA card is issued. As such, the second answer is in error.